Blue Hill’s Farmer Brown loses three-year fight against state dairy regulation

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AUGUSTA — Dan Brown, the Blue Hill dairy farmer whose legal fight against state regulators spawned protests and a slew of anti-regulation ordinances in towns across Maine, has lost his battle in the state’s highest court.

The Maine Supreme Judicial Court on Tuesday issued a ruling upholding a lower court’s decision that Brown had broken the law by selling raw milk from his unlicensed, uninspected Gravelwood Farm. Brown had been selling raw milk, and other food products, from a farmstand and at local farmers markets since 2006.

The high court heard oral arguments in May. Local food activists and some lawmakers rallied around Brown, declaring — as they’d done for three years “We are all Farmer Brown.” As an act of defiance, they drank raw milk on the steps of the courthouse.

Brown was initially sued by the state in 2011. The attorney general held that Brown was required by law to have a milk distributor’s license and a food establishment license, and to clearly and explicitly label his bottles to indicate that the contents were unpasteurized.

In 2013, Justice Ann Murray of Hancock County Superior Court fined Brown $1,000 for failing to comply with state law, and barred him from selling any more milk until he obtained the proper licenses. Tuesday’s Supreme Court ruling affirmed Murray’s judgment.

A state employee in 2006 told him Brown did not need a license to sell raw milk from his farm stand. In 2009, when oversight of Maine’s dairy farms was shifted to a different state agency, the state renewed its enforcement of existing licensing laws, and Brown was notified that he was out of compliance.

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The farmer argued in court that it was illegal for the state to change the rules, because he’d relied on its guidance in establishing his business. He said it would have cost tens of thousands of dollars to build a facility that could meet state requirements.

Writing the unanimous opinion of the Supreme Court, Justice Donald Alexander said that the state’s interest in ensuring the safety of dairy products sold in Maine is paramount.

“The court determined that, under the totality of the circumstances, the public health implications of permitting Brown to sell milk without a license outweigh the injury to Brown to obtain a license,” he wrote.

Brown had also argued that a local Blue Hill rule exempted him from state licensing requirements. Blue HIll’s so-called “local food sovereignty” ordinance sought to shield resident farmers from state oversight as long as they only sold their products directly to consumers.

The Supreme Court said that Blue Hill’s ordinance could only exempt Brown from any local licensing and inspection, not those imposed by the state.

Alexander wrote that the court sought to interpret Blue Hill’s ordinance in a way that would prevent it from violating the Maine Constitution, which grants to municipalities only the authority to pass ordinances that don’t contradict existing state law.

In this case, the Legislature has claimed authority to regulate the production and sale of dairy, so Blue Hill’s anti-regulation ordinance was interpreted by the court only to nullify local regulation.

That will be seen as a huge blow not only to local food sovereignty advocates in Blue Hill, who intended their law to shield local farmers from state regulation, but to activists in several other Maine towns that have passed similar local ordinances.

Activists, who have long attempted to get Maine courts to weigh in on the relative health risks of raw milk vs. pasteurized milk, will also be dismayed by a footnote in the court’s ruling, where the justices declined to pass judgment on the merits of going raw.

“Brown also suggests that unpasteurized milk is as safe to consume as pasteurized milk, that state policies favoring the pasteurization of milk are unsound and that the state’s licensing requirements for the production and sale of raw milk are unjustified. These policy arguments are more appropriately addressed to the Maine Legislature,” wrote Alexander.

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